Human rights are universal

While the fate of General Augusto Pinochet still hangs in the balance, the establishment of an International Criminal Court in Rome in July and the work of the Truth and Reconciliation Commission in South Africa mark a new departure. As we celebrate the 50th anniversary of the Universal Declaration of Human Rights, there is clearly a need for an international response to problems of justice and law. The principle of state sovereignty must no longer be invoked to allow criminals to go unpunished.

by Monique Chemillier-Gendreau

The removal of barriers between states has come about for various reasons - some bad (greed on the part of the principal players) and some that may, in certain circumstances, be good (development of trade and communications). It has been accompanied by a stiffening of resolve to maintain state sovereignty in the matter of rights and freedoms. It follows that, in many cases, states are standing in the way of progress towards values shared by an international community worthy of the name and the development of the judicial mechanisms essential to such progress.

These values are the common values that the Universal Declaration of Human Rights sought to enshrine. But the exercise of the rights listed in the Declaration depends to a large extent on the procedures for invoking them. The authors of the Declaration were well aware that the primary rights - the right to life, liberty, work, an adequate standard of living, etc. - are nothing without a secondary right, the right of access to the law through appropriate procedures. The prevailing legal culture in the 1940s was still essentially national in character. This is clear from the wording of Article 8 which states that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. However, the authors of the Declaration did not stop there. In Article 10, they recognised that everyone is entitled “in full equality” to “a fair and public hearing by an independent and impartial tribunal” (1).

But this is the very right that has been cruelly denied to all the innumerable victims of the disappearances, tortures, summary executions and massive human rights violations that have occurred since 1948, despite the fact that they belonged to countries that had approved the Declaration and had even, in many cases, subsequently adhered to international human rights agreements that have not merely declarative but normative force. It is true that the wording of Article 10 is not entirely clear. In referring to a “tribunal”, without further specification, it implicitly remains within the framework of national courts. This is confirmed by the preparatory work. The general nature and the force of the language used in the Article point to the need to establish appropriate, possibly international, tribunals if domestic law offers no opportunity for a fair and impartial public trial.

Thus the internal thrust of the Declaration is towards ensuring that mankind has courts, of whatever kind, to deal with all rights violations, including cases where the state affords inadequate protection or is itself the oppressor.

This thinking was behind the decisive, though limited, experiment of the Nuremberg and Tokyo tribunals. In the same spirit, the United Nations General Assembly planned 50 years ago to establish an international criminal court (2). That plan has only recently been realised in the shape of an actual institution; and its limits bear witness to the strength of the resistance on the part of the states, which are by no means of one mind on this subject.

But there are no good states and bad states. There are only state powers, the subject of social struggle, first at national level and more recently at international level too. State powers may be democratic to a greater or lesser extent and may give the citizen certain judicial guarantees, depending on the political and economic situation within the state taken in conjunction with international factors. But no state is actively seeking to promote international justice to which it would be subject and before which it could be called to account by its own citizens or those of some other state. Some rulers want continued protection against the consequences of their shameful deeds under the sovereign immunity conferred on the states they represent; others claim that their power bears the seal of democracy and their national institutions afford the individual citizen the best guarantee of protection.

In these circumstances, there was little hope that the rulers themselves would press for a concept of law and justice that would be binding on the state. The change, when it came, was caused by the very excesses of the state powers themselves. The criminal conduct of dictatorships, the erosion of economic rights and the principle of equality, even in leading developed countries that prided themselves on their democratic institutions, the growth of corruption in all the ruling classes, without exception, have led the people to band together to press their claims and demand action on plans the states had formed years earlier, only to consign them to instant oblivion (3).

The broadcast war footage from Bosnia and Rwanda made the very idea of impunity seem intolerable and led to the setting up of two ad hoc criminal tribunals. The rulers who took this step were driven to it by the need to appease public opinion rather than by any moral scruples, witness their subsequent unwillingness to cooperate with these international courts. The same reasons account for the recent establishment of a general criminal court. However, although this new court has radically changed the legal landscape, it would be a mistake to look for any immediate results from all this commotion.

How could it be otherwise, when the only way to impose sanctions on states is by acting through states? In principle, the establishment of the International Criminal Court may be a source of satisfaction but in fact it will have no retroactive powers. Its jurisdiction will extend only to future crimes, not to those committed in the past. It will deal with some of the most serious crimes of all (genocide, crimes against humanity, war crimes) but the signatory states may defer for seven years their acceptance of its jurisdiction with respect to economic crimes. The Security Council will continue to have an important role in that it will have the power to halt investigations by the prosecutor for 12 months (4). The prosecutor will consequently not provide the expected counterbalance to the powers of the body that claims to rule the whole world.

There is thus no sign of any provision for imposing sanctions for crimes committed, not by the authorities of a particular state, but as a result of decisions by a group of states, namely the members of the Security Council. Yet the acts of that body do sometimes deserve to be condemned for their damaging effects on the health and life of individuals, as in the case of the embargo imposed on the people of Iraq under the pretext of punishing acts committed by their leader. And last, it should be noted that, despite all these limitations, states such as the United States, China, India and Israel have refused to support the project. The discussions on the subject brought into the open the somewhat suspect ulterior motives harboured by the United States and to some extent also by France.

So are there any grounds for welcoming this innovation? Certainly, because once the institution is established, its limitations will become clear and it is reasonable to suppose that steps will be taken to remedy them, especially as nothing can stop the onward march of public opinion on the subject.

Time is the greatest enemy. The plan for a permanent criminal court has got off to a relatively quick start but it is essentially a long-term project. Meanwhile, the course of international events is constantly throwing up problems that need to be settled fast. The Pinochet affair is a case in point, and one that reveals the inadequacy of the judicial structures. General Augusto Pinochet was the highest authority in Chile but the repercussions of his criminal acts are not confined to that country. The methods by which he maintained his power were used against foreign nationals and he acted in collusion with neighbouring regimes. And barbarity is of concern to all mankind. A bloody and repressive regime cannot be allowed to invoke the sovereignty and independence of the state to claim legitimacy in the eyes of the international community.

Emerging from long years of bloody dictatorship, Latin America has sought to avoid judicial ruling on the crimes committed in those years. But the people cannot be asked to forget unless justice is done. General Pinochet’s fortuitous presence in London and the initiative of a Spanish judge have revived this burning issue and pointed up the deficiencies of the system. The long procedural delays in Madrid, where the public prosecutor at the national hearing appealed against Judge Garzón’s request for extradition before the court had confirmed the decision on that request, perfectly illustrate the capacity of domestic law to hold up proceedings and highlight the divisions of judicial opinion on the subject. So too does the judicial confusion in London, where the High Court revoked the warrant for General Pinochet’s arrest on the ground that he was protected by the diplomatic immunity conferred on heads of state pending the final decision by the Law Lords.

But the surviving victims, their families and all those who supported the struggle against the dictatorships are now demanding that they too should be heard. Various European countries have filed applications for extradition in the past few weeks, causing political and judicial problems on each occasion. It all comes down to just one question: is the world one community, the community of mankind transcending the division into states, and is the bond uniting the members of that community so strong that the punishment of acts that threaten any one of them is of concern to all, be they victims, witnesses or simply members of the human race?

If so, does it not follow that there is “universal jurisdiction”, in other words that any court in the world may be seised of such acts by anyone, including the courts themselves acting through the prosecutor? We are still a very long way from any such state of affairs. Judicial practice differs widely and legal opinion on the subject is divided. Ought universal jurisdiction to be enshrined in a convention covering a certain type of crime? Can it be based on customary law? If it is clearly recognised, will all the courts in the world merely have the “option” of prosecuting any perpetrator of crimes against humanity or will they be under an “obligation” to do so? Will they have an unconditional right of prosecution, or must the victim, or the torturer, be in their territory? France has certain reservations on this point (5).

This is a central issue. It is no use establishing an international court if states and national courts show no sign of willingness to extend the scope of justice. There are still many obstacles however. In the trials after the second world war, only the victors were able to claim justice, but in any conflict there may be crimes on both sides. Also, the most serious human rights violations do not necessarily occur in the course of conflicts between states. In domestic conflicts too, the victor must be required to account for his acts.

These limits to the jurisdiction of the courts we have now, which mean that some acts are not subject to judicial ruling, can only be extended by increasing the scope of universal jurisdiction. Such jurisdiction, partly governed by convention, must be recognised as having a broader basis. This view finds strong support in Article 10 of the Universal Declaration of Human Rights. Universal jurisdiction is the only way to settle the problem of time and avoid the situation in which courts are called upon to judge very old men many years after the events occurred and pleas for compassion carry great weight.

Only rapid and universal international justice can help (in part, but it is an important part) to remedy a general situation in which endless talk of human rights barely conceals the steady rise and increase in violations of those rights.

(1) Article 10: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

(2) In a resolution dated 27 November 1950, the General Assembly set up a committee to draft the statute of the future international criminal court.

(3) See, for instance, the statement by Solima - Solidarité avec les Mères de la place de Mai (Solidarity with the mothers of the plaza de mayo), Bulletin no 44, Paris, August 1998.

(4) See the statute of the International Criminal Court: Doc. UN A/Conf. 183/9 and 10.